Education and Inspections Bill

The noble Baroness, Lady Howarth, raises exactly the right question. If there were easy answers in this area, I can assure the Committee that we would have grasped them long ago. There is a very strong attraction to the propositions put forward by the noble Lord, Lord Dearing, but I think there are also very major problems with them. I shall set some of those out in a moment. These amendments enable us to debate further the vital area of special educational needs, which we addressed at some length on our first Committee day. I had a lot to say then about general SEN policy and I do not want to repeat my remarks, except to respond to the noble Baroness, Lady Williams, who asked me two more general questions. The evidence is that the increasing numbers of pupils identified with special educational needs have a great deal to do at the aggregate level with much better and earlier identification and, within certain areas of severe special educational needs, it has a great deal to do with better survival rates, so we see more children at the more severe end of the autistic spectrum. Higher survival rates and better medical science come into that. In specific areas of SEN such as dyslexia, to which the noble Baroness referred, better and earlier identification tends to drive up the proportions and the numbers. On Amendment No. 164 in the name of the noble Baroness, Lady Buscombe, under current legislation authorities must give information to parents of statemented children, including a list of all maintained primary or secondary schools in the area, maintained special schools, non-maintained special schools and independent schools that are approved to take state-funded children with special educational needs. The new choice advisers that we are introducing will be able to help parents of children with statements. They will be expected to have knowledge of special educational needs and disability legislation and to be aware of the provision in their areas, including special school provision and how to access the local SEN parent partnership services which already play a valuable role in advising parents on the availability of local provision and how to go about the process of statementing, dealing with local authorities, and so on. I turn to Amendment No. 181A, standing in the name of the noble Lord, Lord Lucas. I have written to him at length setting out the relevant regulations covering the duties of schools in this area. That includes a requirement to publish and make available to parents details of SEN policy and provision, including any arrangements for in-service training for staff in respect of special educational needs. However, the training, development and qualifications of staff working in special educational needs are vital. That was raised in a recent report of the House of Commons Select Committee and we shall give it full consideration in our response. I believe we can and should make improvements in that area and we shall be setting those out in our response, particularly in the important area of the provision and training of special educational needs co-ordinators, who in many ways are the key individuals in schools as regards leading provision for special educational needs. I turn to the issues raised by Amendment No. 179 in the name of the noble Lord, Lord Dearing. In making decisions about statements, local authorities quite properly have to have regard to the efficient use of resources. Those resources have increased very significantly: resources for special educational needs have increased from under £3 billion five years ago to £4.5 billion this year. Nothing in this area, as the noble Baroness, Lady Sharp, says, comes cheaply. She referred to £100,000 for a residential place in a special school which makes provision for children on the autistic spectrum. Even non-residential places are coming in at over £50,000 in special schools which make dedicated provision in that area. Of course, local authorities have to have regard to the efficient use of resources, but that is only in the context of making provision which fully considers and is in the best interests of the individual child. Furthermore, there is a right of appeal to the Special Educational Needs and Disability Tribunal, a right introduced in 1994 on three key issues: first, a right of appeal against any refusal by a local authority to assess for statement, which includes a local authority to which a pupil moves seeking to change the assessment of the statement; secondly, a right of appeal against the provisions set out in part 3 of the statement; and, thirdly, a right of appeal in respect of the school named in part 4 of the statement by the local authority. Decisions of the Special Educational Needs and Disability Tribunal, of which there were 1,800 last year, are binding. I stress that because, having had experience of being a Minister in this area for the past year, it is very important to get into the complexity of issues and arrangements. Nothing is ever as simple as it seems. The noble Lord, Lord Lucas, referred to Nottinghamshire, a county whose provision I know. He is quite right to say that it has one of the lowest levels of statementing in the country. It also has one of the lowest levels of appeals to the Special Educational Needs and Disability Tribunal of any local authority in the country, so there is no good prima facie evidence to think that the quality of provision in Nottinghamshire is leading parents to be disproportionately dissatisfied compared with other authorities. Indeed, some authorities with the highest proportion of statements per 10,000 pupils—I can send the figures to the noble Lord—are those with some of the highest proportions of special schools. The quality of provision in this area is not necessarily linked to higher or lower levels of statementing. In my experience, a good deal of it has to do with the quality of resourced and non-resourced special needs provision in mainstream schools. They account for the great majority of pupils with special educational needs. Whether you have a statementing level at 1, 2 or 3 per cent, the great majority of the nearly 20 per cent of those with special educational needs will be in mainstream schools. This does not apply to parents of those with severe special educational needs, of course, but for most parents the decision of whether to pursue a statement will be intimately linked with the actual quality of provision available to their child in the mainstream school, as they seek to make school choices. That is borne out by last Thursday’s Ofsted report into inclusion, which was raised by the noble Baroness, Lady Buscombe. It directly addresses this issue, which has governed so many of our debates since the noble Baroness, Lady Warnock, raised special schools so starkly a few months ago. It has done so through a substantial survey of special schools, mainstream school units and schools with resourced provision attached. The first paragraph of the executive summary of the report is on the Ofsted website, and makes clear where Ofsted’s judgment lies: "““The most important factor in determining the best outcomes for pupils with learning difficulties and disabilities … is not the type but the quality of the provision. Effective provision was distributed equally in the mainstream and special schools visited, but there was more good and outstanding provision in resourced mainstream schools than elsewhere””." I stress that because of the policy in Cheshire, referred to by the noble Lord, Lord Lucas, which I have looked into because he raised it with me and I take care to follow things up. That policy is a move in a direction for which, on the basis of the Ofsted report, good support could be claimed—provided, of course, it is done in a proper and orderly way. As I understand it, the Cheshire policies are at an early stage of development, and are not proposed to be implemented in full until 2016. It is a long process. That brings me directly to Amendment No. 179 of the noble Lord, Lord Dearing, on whether to break the link between assessments and funding. I shall be clear: we are carefully considering these issues in response to the Select Committee. We have a duty to do so; the Select Committee made recommendations and the noble Lord referred to them. I point out two immediate things, however. First, you cannot make a distinction between assessment and funding unless there is an open-ended commitment from the Government simply to meet all the decisions made by the assessment body. Either the body undertaking the assessments has a budget or it does not. If it does not, the only way its decisions can be implemented in full is if the Government give a completely open-ended commitment to fund them. Whether or not you think that is a good idea, you must consider the role of local education authorities in this process. The noble Lord, Lord Lucas, brought this out: you would not simply leave the assessment decision with that body. If it is not a local authority, it would have to be a national or regional quango; there is no other way you could do this. But because the naming of the particular school the child attends is vital to the assessment decision, if the agency were left with that decision you would in practice be taking the whole determination of local special education needs provision substantially out of the hands of the local authority and giving it to the quango. I have thought about this a good deal in response to the Select Committee, and when we were thinking abut our decision in the run-up to it. You cannot make this neat distinction between assessment and provision. The assessment obviously drives the provision. Once the quango which you set up to determine these matters starts making its assessment decisions, that will drive the pattern of local provision. That is not to say that this may not be a better system than the status quo; it is well worth thinking about. If I were seriously thinking about it, one of the first things I would do would be to ask the noble Lord, Lord Dearing, to chair a national inquiry to look at these issues, as he has done in so many other areas. I add a note of caution, however: noble Lords must be aware of the gravity of the decision that they will be taking. In effect, they would be removing special educational needs provision—the key decisions about funding and patterns of provision—from local education authorities, which are elected and accountable to their localities, and giving it to a quango. Noble Lords should be under no illusions that this would be the effect of their decision. We have had a lot of debates about local authorities over the three nights we have been debating this, but that would be a bigger change in the role and functions—and withdrawal of functions—of local education authorities than any other provision of this Bill currently in place. I hope that this is considered in the run-up to Report. I am not saying that there is no case for such a change; it should be considered in a mature way. I noticed that the noble Lord, Lord Dearing, was seeking to put the idea out. I did not get the sense that he was seeking to oblige us to make a rapid choice. If the Committee were to do this, however, it would be a fundamental change of education policy and the role of local education authorities. That should not be entered into lightly. The noble Baroness, Lady Sharp, raised the issue of the powers of local authorities in respect of support services. They already have wide powers in this respect, including in all those areas referred to in the amendment, so we do not believe that it is necessary. The Select Committee raised the uniformity between local authorities in the quality of services. In our response to the committee, one of the issues we are considering is whether there should be minimum standards, but the powers of local authorities in this area are adequate to fulfil their functions. The noble Baroness, Lady Buscombe, tabled Amendment No. 254, and I believe her intention is to weaken the assumption of mainstream education for children with special educational needs and to ensure that where parents of children with statements want a special school, they are able to achieve that. Section 316 of the Education Act 1996 already provides that where a parent of a child with a statement indicates that he does not want a mainstream education, the local authority has no duty to provide it. On the contrary, parental wishes are a vital consideration in making any decision about a placement. The LEA is expected to abide by those wishes unless it believes one of three conditions specifically defined in law: that to do so would not meet the child’s special educational needs; that it would not be compatible with the efficient education of other children with whom he would be taught; and/or that it would not be compatible with the efficient use of resources. The parent has a right of appeal to SENDIST if he disagrees with the decision of the local authority about the placement, and SENDIST’s decision is binding. Therefore, the current system meets the objectives of the noble Baroness. I end with the salient fact that over the past five years, the proportion of pupils with statements who are educated in special schools has gone up, not down. That underpins what I said about the needs of the child determining policy in this area. A blanket policy seeking to reduce the role of special schools does not exist.